Com. v. Resch, W.

J-S72003-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM RESCH,
Appellant No. 1382 WDA 2013
Appeal from the PCRA Order Entered July 8, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0017058-2010
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 2, 2014
Appellant, William Resch, appeals pro se from the July 8, 2013 order
denying his petition for relief filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In January of 2011, Appellant was charged with one count each of
rape, unlawful contact with a minor, incest, endangering the welfare of a
child, indecent assault of a person less than 13 years of age, indecent
assault, and corruption of minors. He was also charged with two counts
each of aggravated indecent assault and involuntary deviate sexual
intercourse (IDSI). These charges stemmed from Appellant’s sexual abuse
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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of his biological daughter, beginning when the child was eight years old and
continuing until she was seventeen years old.
On January 30, 2012, Appellant entered a plea of nolo contendere to
the offenses of IDSI and incest. Pursuant to the negotiated plea, the court
sentenced him that same day to an aggregate term of nine to eighteen
years’ incarceration. Appellant did not file post-sentence motions or a direct
appeal. Instead, on October 26, 2012, Appellant filed a pro se PCRA petition
and counsel was appointed. However, rather than filing an amended petition
on Appellant’s behalf, PCRA counsel filed a petition to withdraw and no-merit
letter in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa.
1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
On April 11, 2013, the PCRA court granted counsel’s petition to withdraw
and issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s
petition without a hearing. Appellant filed a timely pro se response.
Nevertheless, on July 8, 2013, the court issued an order dismissing
Appellant’s petition. Appellant filed a timely notice of appeal, as well as a
timely Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. In his 27-page Rule 1925(b) statement, Appellant raised
approximately 25 issues and sub-issues. The PCRA court issued a Rule
1925(a) opinion on July 17, 2014.
In Appellant’s pro se, handwritten brief to this Court, he sets forth nine
questions for our review:
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1.) Whether the [PCRA] court erred in denying any type of
[r]elief, as per [sic] erred by denying [A]ppellant’s PCRA
[p]etition?
2.) Whether the [PCRA] court erred in denying counsel to
[r]epresent [A]ppellant in the filing of the PCRA [p]etition?
3.) Whether the [PCRA] court erred in denying [] [A]ppellant
[l]egal [r]ecords/[d]ocuments to perfect his appeal, and whether
it has caused prejudice to [] [A]ppellant?
4.) Whether counsel was ineffective for failure [sic] to provide
[d]ocumentary [e]vidence to dispute [the] [p]rosecution’s
claims?
5.) Whether counsel was ineffective for failing to have a [d]irect
appeal done for [] [A]ppellant proceeding the sentencing, and
whether it caused prejudice to [] [A]ppellant and violated his
constitutional [r]ights?
6.) Whether the trial court abused its discretion for not ordering
any medical test to determine if the victim was actually sexually
active or if perhaps she was still a virgin?
7.) Was [] [A]ppellant’s plea rendered unknowingly, and
therefore involuntary [sic], and unintelligently, due to …
counsel’s ineffectiveness, and the pressuring of [] [A]ppellant to
take the plea deal?
8.) Whether the [PCRA] court erred in denying [] [A]ppellant’s
amended [PCRA] [p]etition without the benefit of an
[e]videntiary [h]earing?
9.) Whether the [t]rial court erred by allowing DNA to be obtain
[sic] from [A]ppellant, and submitted by an unlicensed
[t]echnologist [sic]?
Appellant’s Brief at 4a-4b.
While Appellant presents nine issues in his statement of the questions
section of his brief, his argument is not divided into distinct claims as
required by Pa.R.A.P. 2119(a) (“The argument shall be divided into as many
parts as there are questions to be argued….”). Instead, Appellant presents
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one continuous, 36-page, single-spaced argument. Therein, he confusingly
intermingles issues and goes from one claim to another (and back again)
with no logical transitions. Appellant’s failure to adhere to the Rules of
Appellate Procedure makes it extremely difficult to review his claims, and
could justify this Court’s quashing his appeal in its entirety. Nevertheless,
we will address the following three claims, which are understandable and
sufficiently developed to permit our meaningful review:
(1) Plea counsel, Scott Coffey, Esq., was ineffective for failing to
adequately investigate Appellant’s case prior to advising him to
plead guilty.
(2) Attorney Coffey ineffectively pressured Appellant - and the
Commonwealth coerced him - into pleading nolo contendere by
threatening that Appellant would receive a sentence of 50 to 100
years’ incarceration if he proceeded to trial.
(3) Attorney Coffey ineffectively failed to file post-sentence
motions and a direct appeal on Appellant’s behalf.
Before addressing these assertions, we note that, “[t]his Court’s
standard of review from the grant or denial of post-conviction relief is limited
to examining whether the lower court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Morales, 701 A.2d 516, 520 (Pa. 1997) (citing Commonwealth v.
Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where, as here, a petitioner
claims that he received ineffective assistance of counsel, this Court has
stated:
To prevail on a claim alleging counsel's ineffectiveness
under the PCRA, Appellant must demonstrate (1) that the
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underlying claim is of arguable merit; (2) that counsel's
course of conduct was without a reasonable basis designed
to effectuate his client's interest; and (3) that he was
prejudiced by counsel's ineffectiveness, i.e. there is a
reasonable probability that but for the act or omission in
question the outcome of the proceedings would have been
different.
It is clear that a criminal defendant's right to effective
counsel extends to the plea process, as well as during trial.
However, [a]llegations of ineffectiveness in connection
with the entry of a guilty plea will serve as a basis for relief
only if the ineffectiveness caused the defendant to enter
an involuntary or unknowing plea. Where the defendant
enters his plea on the advice of counsel, the voluntariness
of the plea depends on whether counsel's advice was
within the range of competence demanded of attorneys in
criminal cases.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012)
(citations, quotation, and quotation marks omitted). “[T]he law
does not require that [the defendant] be pleased with the
outcome of his decision to enter a plea of guilty: All that is
required is that [his] decision to plead guilty be knowingly,
voluntarily, and intelligently made.” [Commonwealth v.]
Anderson, 995 A.2d [1184,] 1192 [(Pa. Super. 2010)]
(citations, quotation, and quotation marks omitted). Moreover,
with regard to the prejudice prong, where an appellant has
entered a guilty plea, the appellant must demonstrate “it is
reasonably probable that, but for counsel's errors, he would not
have pleaded guilty and would have gone to trial.”
Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa. Super.
2006) (quotation and quotation marks omitted).
Commonwealth v. Timchak, 69 A.3d 765, 769-770 (Pa. Super. 2013).
First, Appellant avers that Attorney Coffey failed to adequately
investigate his case prior to persuading Appellant to plead nolo contendere.
Appellant claims that had Attorney Coffey done so, he would have
discovered various facts and evidence that would have compelled counsel to
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“buil[d] a defense” rather than “pressure[] [Appellant] into [entering] a
plea….” Appellant’s Brief at 15a. Specifically, Appellant claims that Attorney
Coffey would have discovered evidence such as unnamed witnesses who
could have testified in Appellant’s defense; emails from the victim to
Appellant, and postings by the victim on social media websites, that
ostensibly indicated the victim was recanting her allegations against
Appellant; and a February 15, 2011 letter sent to Appellant by Allegheny
County Children, Youth and Families (CYF) stating that allegations of sexual
abuse by the victim against Appellant were deemed ‘unfounded.’
Initially, Appellant does not explain how Attorney Coffey’s purported
failure to investigate the above-stated facts and evidence resulted in
Appellant’s entering an involuntary and unknowing plea. As the PCRA court
emphasizes, Appellant was aware of all of the evidence he now claims
Attorney Coffey failed to review, and he considered that evidence when
deciding to enter the plea. Thus, he has not proven that but for Attorney
Coffey’s conduct, he would not have proceeded to trial. See Rathfon, 899
A.2d at 370.
In any event, “counsel’s performance is presumed to be
constitutionally adequate, and counsel will only be deemed ineffective upon
a sufficient showing by the petitioner.” Commonwealth v. Johnson, 966
A.2d 523, 532 (Pa. 2009) (citation omitted). Appellant has failed to meet
this burden. Namely, he did not present any evidence to the PCRA court to
support his bald allegation that Attorney Coffey failed to adequately review
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his case file. Instead, Appellant simply argued that had counsel done so, he
would not have ‘pressured’ Appellant to enter a plea. However, a letter to
Appellant from Attorney Coffey, attached to Appellant’s pro se PCRA petition,
indicates that Attorney Coffey did review the case and had reasonable
grounds for recommending that Appellant accept the Commonwealth’s plea
offer. Specifically, Attorney Coffey stated that he spoke at length with
Appellant’s initial trial counsel, Leslie Perlow, Esq., who informed Attorney
Coffey that the victim had “every intention of testifying against” Appellant at
trial. See Appellant’s Pro Se PCRA Petition, Exhibit 6 (Letter from Attorney
Coffey dated 11/25/11). Attorney Coffey informed Appellant that he
believed it was “very likely” that Appellant would be convicted of the eleven
charges pending against him if he proceeded to trial. Id. Because such a
verdict could result in a sentence of up to 50 to 100 years’ incarceration,
Attorney Coffey urged Appellant to accept the Commonwealth’s plea offer of
9 to 18 years’ imprisonment. Based on this record, Appellant has failed to
overcome the presumption that Attorney Coffey competently reviewed his
case before advising him to accept the Commonwealth’s plea offer.
Appellant next contends that Attorney Coffey and the Commonwealth
coerced him into pleading nolo contendere by threatening that he would
receive a 50 to 100 year sentence if he chose to proceed to trial. However,
nothing in the record supports this claim. In a letter sent to Appellant prior
to trial, the Commonwealth notified him that it intended to seek application
of mandatory minimum sentences totaling 50 to 100 years’ incarceration if
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he proceeded to trial and was convicted of all counts with which he was
charged. See PCO at 10 (citation to the record omitted). This information
was not conveyed to Appellant in a threatening manner, but was stated
matter-of-factly. At the same time, the Commonwealth offered Appellant a
plea deal of 9 to 18 years’ imprisonment. Attorney Coffey communicated
with Appellant about the Commonwealth’s offer in a letter. See Appellant’s
Pro Se PCRA Petition, Exhibit 6 (Letter from Attorney Coffey dated
11/25/11). While Attorney Coffey strongly urged Appellant to accept the
plea agreement, there was nothing threatening in his tone. Id. Having
reviewed these letters, the PCRA court concluded that neither the
Commonwealth nor Attorney Coffey acted improperly and, thus, Appellant’s
plea was not coerced. See PCO at 10-11 (citation to the record omitted).
We ascertain no error in that determination.
Lastly, Appellant maintains that Attorney Coffey acted ineffectively by
not filing a post-sentence motion and a direct appeal on Appellant’s behalf.
Appellant claims that he repeatedly asked Attorney Coffey to file such
documents, yet counsel failed to do so. See Appellant’s Brief at 19a.
Appellant also claims that Attorney Coffey ineffectively failed to consult with
him about the options for filing a post-sentence motion and a direct appeal.
Id. at 21a.
In rejecting these ineffectiveness claims, the PCRA court first noted
that Appellant was informed of his post-sentence and appellate rights at the
conclusion of his plea/sentencing hearing. See PCO at 13 (quoting N.T.
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Plea/Sentencing, 1/30/12, at 17-18). The court then emphasized that in his
PCRA petition, Appellant offered no evidence to demonstrate that he
“communicated to counsel any desire to file an appeal.” Id. at 14. Finally,
the court found that, based on the record and the terms of Appellant’s
negotiated plea agreement, “there would be no basis for counsel to believe
that [Appellant] would want to file an appeal.” Id. Consequently, the court
concluded that Attorney Coffey did not act ineffectively.
Again, we ascertain no error in the court’s determination. In Roe v.
Flores-Ortega, 528 U.S. 470 (2000), the United States Supreme Court held
that “counsel has a constitutionally-imposed duty to consult with the
defendant about an appeal when there is reason to think either (1) that a
rationale defendant would want to appeal (for example, because there are
nonfrivolous grounds for appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that he was interested in appealing.”
Id. at 480. This Court has also directed that, “[b]efore a court will find
ineffectiveness of counsel for failing to file a direct appeal, the defendant
must prove that he requested an appeal and that counsel disregarded that
request.” Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 2006)
(citation omitted).
Here, the record supports the PCRA court’s conclusion that Appellant
did not prove he requested an appeal and Attorney Coffey disregarded that
request. Moreover, we agree with the PCRA court that there is nothing in
the record that should have indicated to Attorney Coffey that Appellant may
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have wanted to file an appeal. In particular, Appellant entered his nolo
contendere plea without incident, and received the agreed upon, legal term
of incarceration. Accordingly, Appellant has not proven that Attorney Coffey
acted ineffectively in this regard.
Order affirmed.
Judge Shogan joins the memorandum.
Judge Strassburger files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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